General Terms of Service
Last Modified: February 27, 2020
THESE GENERAL TERMS OF SERVICE (the "Agreement") are entered into effective as of the date on which You accept this Agreement (the "Effective Date"), by and between Cloudsitter GmbH, a German limited liability company ("Cloudsitter"), and you and/or the entity you represent as signed below ("You", "Your"). Cloudsitter and You may be individually referred to herein as a "Party" and collectively referred to as the "Parties."
This Agreement includes the terms and conditions surrounding Your use of Cloudsitter's Cloud Marketplace website (the "Site"), including any use or ordering of the products and services purchased or accessed through the Site (the "Services"). Services include any software contained within or used in connection with the Services. BY USING THE SITE, INCLUDING ORDERING, RESELLING, OR USING ANY OF THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO THIS AGREEMENT, AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BE LEGALLY BOUND BY THIS AGREEMENT AND TO LEGALLY BIND YOUR COMPANY TO THIS AGREEMENT. THE TERMS "YOU" AND "YOUR" SHALL REFER TO YOUR COMPANY AND TO YOU IN CONNECTION WITH YOUR USE AS A USER ON BEHALF OF YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, NEITHER YOU NOR YOUR COMPANY MAY USE THE SITE OR ANY SERVICE.
BY USING THE SITE INCLUDING ORDERING, RESELLING, OR USING ANY OF THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND INTEND TO BE BOUND BY ALL OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN, AS WELL AS THE TERMS, CONDITIONS, AND NOTICES CONTAINED IN THE POLICIES POSTED ON THE SITE (THE "CLOUDSITTER POLICIES"), JUST AS IF YOU HAD SIGNED THIS AGREEMENT. If You do not accept this Agreement or the Cloudsitter Policies, You are not licensed or otherwise permitted to use the Services, and You may not use the Site.
These terms are in addition to any terms and conditions that apply to particular Services or the Site, including any other Cloudsitter or Third Party Vendor Service Level Agreements, terms of service and use agreements and other policies such as the Acceptable Use Policy ("AUP"), that are incorporated by reference in this Agreement and available online on our Legal site or on the applicable Third Party Vendor site.
Cloudsitter may at any time modify the terms and conditions of this Agreement, or any part thereof, or may impose new conditions to use of the Services. Except as otherwise stated herein, any modification to this Agreement shall be effective immediately after it initially is posted on the Site. Use of the Service after any such modification will be conclusively deemed acceptance of such modification. If any modification is unacceptable, You may terminate this Agreement, subject to the terms and conditions contained herein. The Agreement may not otherwise be amended except in a writing signed by You and by a representative of Cloudsitter.
Upon breach of the Agreement by You, Cloudsitter may following written notice to you, temporarily or permanently prevent You from using the Services, cancel the Services without a refund, following written notice to You, and, if appropriate, pursue legal action against you. In addition, You may be subject to civil or criminal penalties and/or injunctive relief.
"Cloudsitter" refers to Cloudsitter GmbH, a German limited liability company.
"Services" refers to the two categories of Services available on the Site: (a) Services that are developed by and licensed to end users by Cloudsitter ("Cloudsitter Service"); and (b) Services that are developed and licensed to end users by a third party vendor (such vendors are referred to in this Agreement as a "Third Party Vendor" and their Services are referred to as " Third Party Vendor Services"). Services are currently available to customers in European Union.
"Service Level Agreement" means all service level agreements that we offer with respect to the Services and post on the Site, as they may be updated by us from time to time. The service level agreements we currently offer with respect to the Services are located here.
"Terms" refers to the terms of this Agreement as well as the additional terms, conditions and policies related to the Services posted on online on our Legal site or a Third Party Vendor's website.
"User" or "customer" refers to end users of the Services who purchase such Services through an Cloudsitter Reseller.
"You" or "Your" in this Agreement refers to any individual or entity who accepts this Agreement, has access to Your account, uses the Services or the Site, or orders the Services, and includes both end users of the Services as well as Cloudsitter Resellers (defined below).
- CLOUDSITTER RESELLERS
If You are an authorized reseller customer of Cloudsitter or one of Cloudsitter's affiliates ("Cloudsitter Reseller"), and unless otherwise agreed to in a separate written agreement between us in respect of Services, You agree that Cloudsitter's sales terms and conditions set forth at www.cloudsitter.com, as modified by this Agreement, govern Your purchase of Services for resale to Your customers as well as use of the Site by You or Your customers.
Please note that while Your reseller account may have been set up with an Cloudsitter local affiliate, when You purchase Services on the Site, these sales occur through the Cloudsitter entity described in the definitions section above.
As an Cloudsitter Reseller, You acknowledge that You are responsible for the acts or omissions of Your customers that use the Site or the Services and confirm that You have disclosed and that Your customers agree to their responsibilities and obligations under this Agreement. If You become aware that any customer is violating its obligations under this Agreement, You will immediately notify Cloudsitter. Failure of Your customers to pay for Services purchased will not relieve You of Your obligation to pay Cloudsitter for the Services ordered by or through You. You acknowledge that Your purchases of Services are only for resale and not for Your own use, and that You do not qualify as a consumer in accordance with the applicable laws of Your territory. You are exclusively liable to Your customers and for providing them with Service support.
- SERVICE END USERS
If You are an end user of the Services, You acknowledge and agree that You must first contact Your Cloudsitter Reseller or their designated representative with regard to any Service issues, including any issues with support or payment. You further understand that Your relationship is exclusively with Your Cloudsitter Reseller from whom you have purchase the Services.
The Site and the Services are only available to users who can form legally binding contracts under applicable laws in the jurisdictions in which the Services are offered.
- USE, FEES, PAYMENT TERMS AND TAXES
- USE OF SERVICE(S). Cloudsitter will specify the term of authorized use of the Service(s), the fees and other charges for the Service(s), any special payment terms, the scope of use, and the numbers, types and identifiers of permitted users, applications, servers, devices, capacity and locations at or through which You are permitted to use the Service(s) in Your order. You may not use or otherwise access the Service(s) in a manner that exceeds Your authorized use. If You exceed Your permitted use of the Service(s), then, You will promptly notify Cloudsitter and immediately: (i) disable or correct impermissible use; or (ii) purchase additional Service(s) to correspond to actual use. You agree that Cloudsitter may review Your use of the Service(s), and You will provide any reasonable assistance to verify Your compliance with this Agreement. Cloudsitter may suspend or terminate Your use of the Service(s) immediately upon written notice of non-compliance identified in such review, in addition to exercising any other rights or remedies Cloudsitter may have.
- FEES AND PAYMENT TERMS.
- Cloudsitter Resellers: If You are an Cloudsitter Reseller, You agree to the following terms set forth in this section. Payment will be accepted by credit card or wire transfer only. You agree to pay the fees and charges for the Services as outlined in the registration process and that appear on the Site, as may be amended from time to time. Fees and charges for Services are non-refundable. Charges may include, but are not limited to: (i) subscription fees for the relevant service; (ii) domain registration and renewal fees; (iii) SSL certificate fees; (iv) additional features fees; (v) disk space or bandwidth fees; (vi) additional e-mail accounts fees; (vii) internet access subscription fees; (viii) any applicable internet access roaming charges; and (ix) any applicable taxes. Cloudsitter will notify You of any such changes by updating the Site or sending notice by e-mail or regular mail. You authorize Cloudsitter to charge any amounts payable by you, in connection with Your customer's use of the Services, automatically to the credit card You provide in the registration process or such credit card number that You provide thereafter, regardless of the status of Your account with Cloudsitter and subject only to the terms and conditions of the agreement between You and Your credit card issuer. Your right to order the Services is subject to any limits established by Your credit card issuer. Currency for all subscriptions will be as indicated in the registration process. If You fail to make timely payment You agree that Cloudsitter may, in addition to all other rights and remedies provided to Cloudsitter hereunder or at law, terminate or suspend the affected Service(s). Cloudsitter may charge You an administration fee equivalent to the greater of 5% or the fee indicated in the chart below for any and all credit card chargebacks. In respect of all valid credit cards that You provide Cloudsitter for the purpose of payment, if You do not notify Cloudsitter prior to the expiration date of such credit card, Cloudsitter will automatically update the expiration date of the credit card on Cloudsitter's own internal system to the next year in order to prevent any undesired interruption of Services. Cloudsitter will charge You a reactivation fee as indicated in the chart below for each cancelled customer account. Cloudsitter will assess You a USD$99.95 fee if Cloudsitter is required to restore Your data files to Your reactivated account(s). Wire transfers should include any additional processing fees that may apply, particularly international wire transfers. You are responsible to ensure these additional fees, if any, are added to the wire transfer submitted to us. The account split fee indicated in the chart below will apply if You split existing accounts into new accounts. Cloudsitter will apply this fee to the new account(s) created.
You must pay in advance for Your or Your customers’ use of the Services, unless otherwise agreed to by Cloudsitter. You authorize Cloudsitter to charge any amounts payable by You, in connection with Your customer’s use of the Services, automatically using the payment method you selected during the registration process or such payment information that You provide thereafter, regardless of the status of Your account with Cloudsitter and subject only to the terms and conditions of the agreement between You and Your payment processing provider. Your right to order the Services is subject to any limits established by Your credit card or other payment processing issuer. For any and all credit card chargebacks, Cloudsitter may charge You an administration fee equivalent to the greater of 5% of the chargeback or EUR 25. In respect of all valid credit cards that You provide Cloudsitter for the purpose of payment, if You do not notify Cloudsitter prior to the expiration date of such credit card, Cloudsitter will automatically update the expiration date of the credit card on Cloudsitter’s own internal system to the next year in order to prevent any undesired interruption of Services.
|Reseller Location||Chargeback Fee||Reactivation Fee||Data Restoration Fee||Account Split Fee|
You are responsible for billing and collecting any payments for Services from Your customers.
If at any time Your fees are more than thirty (30) days in arrears, it is deemed that You have ceased provisioning Services to Your customers, Cloudsitter reserves the right to terminate Your customer accounts with cause upon ten (10) days' written notice. Cloudsitter may in such instance take necessary steps in order to ensure the provisioning of Services to Your customers in the interest of business continuity, which steps include assuming the billing and support relationship directly or transferring Your customers to another Reseller.
Quoted prices, including discount structure, are subject to change without notice.
- End Users: If You are an end user of the Services purchasing the Services from an Cloudsitter Reseller, Your Cloudsitter Reseller will invoice Your Service fees to You directly. In the event that you become a customer of Cloudsitter in accordance with Section 5.(b)(1), and are purchasing the Services directly from Cloudsitter, Cloudsitter will invoice Your Service fees to You and You shall make payment directly to Cloudsitter.
- TAXES. All payments are exclusive of Federal, state, provincial, local or foreign taxes, duties, tariffs, levies and similar assessments. You agree to bear and be responsible for the payment of all taxes, duties, tariffs, levies, fees and charges of any kind, including sales, use, excise or value added taxes, and all other similar charges (collectively, "Taxes") that are imposed on transactions by or under the authority of any government body, excluding Taxes based solely upon Cloudsitter's net income. If You are a tax-exempt entity or claim exemption from any Taxes hereunder, You will provide a certificate of exemption upon agreement to this Agreement and, after receipt of valid evidence of exemption, Cloudsitter will not charge You any Taxes from which You are exempt.
- GRANT OF USE RIGHTS; OWNERSHIP; CUSTOMER RESTRICTIONS
- CLOUDSITTER SERVICES. Cloudsitter hereby grants to you, conditioned upon payment of applicable fees, a non-exclusive, non-assignable, non-transferable, worldwide right during the term of the subscription to access and use Cloudsitter Services that Cloudsitter represents to You as being licensable by Cloudsitter to You under this Agreement.
- CLOUD MARKETPLACE. Cloudsitter hereby grants to you, conditioned upon payment of applicable fees, a non-exclusive, non-assignable, non-transferable, worldwide right during the term of Your subscription to access and use the Cloudsitter Cloud Marketplace in furtherance of its access and use of Cloudsitter Services. Cloudsitter Cloud Marketplace will include any and all third party licenses in furtherance of the creation and maintenance of Cloudsitter Cloud Marketplace.
- DOCUMENTATION. Cloudsitter hereby grants to You a non-exclusive, non-assignable, non-transferable, worldwide right during the term of Your subscription to access and use, if any, user documentation relating to the operation and use of the Cloudsitter Service(s) that may be provided by Cloudsitter to you, as updated by Cloudsitter from time to time ("Documentation").
- CUSTOMER DATA. Subject to the conditions set forth in Section 14 of this Agreement, you hereby grant Cloudsitter and applicable Third Party Vendors a non-exclusive, non-transferable, royalty-free, worldwide right to use the electronic data specifically pertaining to You and/or Your users that is processed using the Service(s) (collectively "Customer Data") strictly for the limited purpose of providing the Service(s) to You or an End User.
- OWNERSHIP. You acknowledge and agree that the Site and any and all related software used in connection with the Services contain proprietary and confidential information of Cloudsitter or Third Party Vendors or other third parties that is protected by applicable intellectual property rights and other laws. As between Cloudsitter and you, all rights, title, and interest in and to all intellectual property rights in the Cloudsitter Service(s) and Documentation are owned exclusively by Cloudsitter. Except as expressly provided herein, Cloudsitter does not grant You (and Cloudsitter expressly reserves for ourselves and any of our licensors) any rights, express or implied, or ownership in the Cloudsitter or Third Parties' Service(s) and Documentation. Cloudsitter shall have a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right to make, use, sell, offer for sale, import, or otherwise incorporate into Cloudsitter Service(s) and Documentation, any suggestions, enhancements, recommendations or other feedback provided by You relating to the Service(s) and Documentation.
- RESTRICTIONS. You shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, loan, transfer, distribute, time share or grant a security interest in the Service(s) or Documentation or any portion of the Site, or make any of them available for access by third parties, including without limitation, in the manner of a service bureau or hosted application (provided that there is no restriction for an Cloudsitter Reseller reselling the Services as permitted under this Agreement); (ii) create derivative works based on or otherwise modify the Service(s) or Documentation; (iii) disassemble, reverse engineer or decompile the Service(s); (iv) access the Service(s) or Documentation in order to develop a competing product or service; (v) use the Service(s) to provide a service for others; (vi) use Cloudsitter Cloud Marketplace to operate more or different type of applications than permitted by Cloudsitter; (vii) use or send viruses or other harmful computer code; (viii) interfere with the integrity of the Service(s) in any manner; (ix) remove or modify a copyright or other proprietary rights notice on or in the Service(s) or Documentation; (x) use the Service(s) to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (xi) use a computer or computer network to cause physical injury to the property of another; (xii) violate any applicable law or regulation of Germany, EU the United States, as well as any law or regulation of other countries that may apply to You or the Services including the laws of the countries of where you live (or where your business is headquartered); (xiii) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Service(s); (xiv) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Service(s); (xv) disrupt the integrity of the Service(s); (xvi) temporarily or permanently remove, copy, add, modify, halt or disable any computer data, computer programs or computer software from a computer or computer network without authorization; (xvii) cause a computer to malfunction, regardless of how long the malfunction persists; (xviii) alter, disable, or erase any computer data, computer programs or computer software without authorization or use them to obtain unauthorized access to the Services or Site; or (xix) access the Site or Services by any means other than through the interface provided by Cloudsitter to access the Site or Services.
- CUSTOMER CONDUCT. You agree that You are responsible for, without limitation, the following: (i) Your implementation of the Service(s); (ii) protecting the names and passwords of the users of the Service(s) and Site and preventing and notifying Cloudsitter of unauthorized use of the Service(s) or Site; (iii) appointing key designated support contacts for purposes of contacting Cloudsitter with regard to support questions and/or technical issues and ensuring that such contact information is current with Cloudsitter; (iv) the lawfulness of each user's acts and omissions; (v) using the Service(s) and Site encryption feature, if and when made available to you, for any of Your data containing sensitive information; (vi) using the Service(s) and Site within the permitted scope and only in accordance with the numbers, types and identifiers of permitted users, applications, servers, devices, capacity and locations at or through which You are permitted to use the Service(s) and Site as set forth in the Terms; and (vii) using the Service(s) and Site only in accordance with applicable documentation.
- THIRD PARTY SERVICES. Notwithstanding anything to the contrary in this Agreement, Your license to use any Third Party Vendor Services is provided by the Third Party Vendor and not Cloudsitter, and is subject to any terms and conditions of services as made available by the Third Party Vendor, including, but not limited to, warranties (if any), ownership of intellectual property and permitted uses.
- THIRD PARTY SUPPLIERS AND SOFTWARE. As part of the Cloudsitter Services, You may be allowed to use certain software (including related documentation) provided by third party licensors. This software is neither sold nor distributed to You and You may use it solely as part of the Services and subject to any terms of service as made available by the third party, including, but not limited to, warranties (if any), ownership of intellectual property and permitted uses. You may not transfer such Software outside the Cloudsitter Services without specific authorization to do so.
- PRODUCT SPECIFIC TERMS
- CLOUDSITTER WEB HOSTING.
Cloudsitter's Web Hosting Service is a shared service, which means multiple web sites are hosted on the same server utilizing the same server resources. Cloudsitter's service is architected to meet the typical needs of home-based offices and small business website customers. It is NOT intended to support the demands of large enterprises, international businesses, or non-typical applications, all of which are better suited to the Cloudsitter Virtual Private Server Service.
- Unless You purchase Services with unlimited features, Cloudsitter Web Hosting Services are provided with set limitations, as defined by the service plan(s) subscribed to, as they may change from time-to-time.
- If You purchase Cloudsitter Web Hosting Services that are provided with unlimited features (e.g., bandwidth and disk space), the following terms apply: Cloudsitter does not set any pre-defined limits on the amount of resources You can consume as part of the subscribed Services subject to reasonable consumption that Cloudsitter reserves the sole and exclusive right to decide based on the principal of providing You with all the disk space and file transfer resources necessary to operate Your web site. Subject to reasonable consumption, Cloudsitter does not set any limits on the amount of disk space You can use for Your website, nor does Cloudsitter charge additional fees based on an increased amount of storage used, provided Your use of storage complies with this Agreement. You agree that these resource allocations are optimized and dedicated towards serving web documents, email services and are not intended for online storage, backups, or archiving of electronic files, documents, log files, etc., and any such prohibited use of the Services will result in the termination of Your account, upon prior written notice . Prior to termination of your account, You shall be granted a reasonable period to remedy the breach.
- CLOUDSITTER DOMAIN REGISTRATION.
When registering any domain names through Cloudsitter, You also accept and agree to all Domain Agreements published and maintained by Key-Systems GmbH that pertain to any domain names You have registered through Cloudsitter, as they existed at the time of registration, or as they may change from time-to-time. Cloudsitter publishes all Domain Agreements online on our Legal site. Ownership of any Domain registration(s) registered on Your behalf by Cloudsitter will not be transferred to You until satisfactory payment is received in full by Cloudsitter for the registration(s). If payment is not received, or if Cloudsitter determines payment provided is unsatisfactory (fraud, insufficient funds, etc.), You agree to waive any and all rights to the domain registration(s) and permit Cloudsitter to return domain registration(s) to the domain name registry, if possible, or assume full and complete ownership of domain registration(s) for any purpose whatsoever. You are prohibited from transferring any domain registration(s) away from Cloudsitter's control until Cloudsitter receives full and satisfactory payment for all domain registration(s). If You have purchased Your domain registration(s) as part of a special promotion (e.g., the domain registration(s) is included in the price of the subscribed service plan), ownership will transfer to You at the time Cloudsitter receives full and satisfactory payment for the subscribed service plan. If You cancel any special promotional service before the end of the term, You agree to compensate Cloudsitter for the cost of the domain registration(s) provided as part of the special promotion.
- If Cloudsitter provides You with a free Domain Registration as part of any special offer when You subscribe for any of the Services, You agree to pay all related Domain Registration fee(s) if You or Cloudsitter cancel any Services before the Initial Term has lapsed for the applicable Services.
- If applicable, Cloudsitter will automatically renew all domain names, associated with hosting Your account that were registered by or transferred to Cloudsitter. Cloudsitter will send a reminder notice to Your e-mail address on record at least one (1) month prior to the expiry of such domain name(s). You may decline the renewal up to 24 hours prior to the renewal date by following the appropriate instructions attached to the e-mail from Cloudsitter. Any failure to decline this renewal request is deemed sufficient authorization from You for Cloudsitter to renew the relevant domain name(s) for a period of one (1) year at the current rates, as further detailed in the renewal notice. Pricing details for domain name renewals are available by following the instructions provided in the email, but may not always be provided in the email itself.
- SSL CERTIFICATES. Cloudsitter SSL Certificates are subject to these additional terms and conditions:
Cloudsitter provides all SSL and EV SSL Certificates to You for exclusive use with other Services You purchase from Cloudsitter.
- All SSL and EV Certificates Cloudsitter provides to You are provided by way Comodo CA Ltd. Comodo may, contact You to validate the information provided for such SSL or EV SSL Certificates and Your eligibility for the certificates. Comodo is solely responsible for determining eligibility for all SSL or EV SSL Certificates.
- You agree that you will be solely responsible for addressing any claims to Comodo directly as they pertain to any and all SSL and EV SSL Certificates purchased through Cloudsitter, and all such legal issues related to SSL and/or EV SSL Certificates between You and Comodo will only be interpreted and construed under the laws of the United Kingdom without regard to its conflicts of law principles.
- SUPPORT SERVICES. If Cloudsitter determines that any support request falls outside the scope of the Services, Cloudsitter may provide custom support services for a fee, or on a per service basis, which we will be quoted to You before providing the service. Cloudsitter may require that You pay for the Services prior to the commencement of any work being performed and these fees are non-refundable. You must, within fourteen days of any such support Services, notify us if there are any issues with the Services. We are not responsible for and will not provide assistance with any issue(s) that arise beyond this time frame.
- SERVICE LEVEL AGREEMENTS
Service Level Agreements may apply to certain Services. Cloudsitter may change, discontinue or add Service Level Agreements from time to time.
- INTELLECTUAL PROPERTY
- By submitting media and/or information such as text, photos, audio or videos, or any other content to the Site or through the Services (collectively, " Content"), You represent and warrant that such Content does not infringe upon any third party intellectual property right or personal rights, including, but not limited to, patent, copyright, trademark, trade secret, privacy or other intellectual or proprietary right.
- If Cloudsitter becomes aware of any Content posted by You in connection with the Services that could be infringing on a third party's intellectual property rights, Cloudsitter may initiate an investigation. If Cloudsitter receives a claim from a third party complainant with the applicable copyright or trademark registration number, a copy of the underlying copyrighted work along with Your materials and/or a good faith declaration, signed under penalty of perjury, that (i) the material is the property of the complainant, or (ii) the work has been copied and that use of the material is not defensible, then Cloudsitter, in its sole and absolute discretion, may, at any time, restrict Your access to the challenged material.
You agree to defend, indemnify and hold harmless Cloudsitter, its affiliates, and their respective directors, officers, shareholders, employees, agents, licensors and advisors ("Indemnified Parties"), from and against any claim, demand, liability, damage, losses, judgments, suit, action, or cause of action, costs and expenses (including, without limitation, reasonable legal fees) arising directly or indirectly out of Your use of the Services or the Site, including, but not limited to (a) Your breach or violation of any provision of the Terms, (b) Your use of any Service or the Site, including Your publication or use of Content that infringes the intellectual property rights of any third party, including, but not limited to, patent, copyright, and trade secret rights, (c) any action taken by Cloudsitter in investigating a suspected violation of the Terms or as result or finding that a violation has occurred, and (d) costs associated with document production, depositions, interrogatories and related demands arising out of private third party, governmental or regulatory claims in connection with the Services or Site to the extent Cloudsitter is not a target. For purposes of this indemnity provision, if You are an Cloudsitter Reseller, references to "Your" includes You and Your customer(s).
- Cloudsitter will notify You of the copyright infringement allegation and will allow You to respond to the allegation(s). You agree that Cloudsitter shall have no liability, directly or indirectly, to third parties for any of Your infringing materials.
- Copyright Infringement Notice. Cloudsitter responds to notices of alleged copyright infringement in accordance with the applicable laws and regulations. If You believe that Your work has been exploited in a way that constitutes copyright infringement, You may contact Cloudsitter through the contact information provided below.
- You will not use the name, trademarks or logos of Cloudsitter, its affiliates or any Third Party Vendors without the prior written approval of the respective party. All content included on the Site and in the Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Cloudsitter or its content suppliers and protected by the applicable German, EU, U.S. and international copyright laws. The compilation of all content on the Site is the exclusive property of Cloudsitter and protected by the applicable German, EU, U.S. and international copyright laws. All software used on the Site is the property of Cloudsitter or its software suppliers and protected by the applicable German, EU, U. S. and international copyright laws.
- WARRANTY DISCLAIMER
- TO THE EXTENT PERMITTED BY LAW, THE SITE AND ALL SERVICES PROVIDED BY CLOUDSITTER ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT.
- EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, CLOUDSITTER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. THIRD PARTY SERVICES ARE PROVIDED AS-IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED; ANY WARRANTY FOR THIRD PARTY SERVICES IS PROVIDED, IF AT ALL, BY THE THIRD PARTY VENDOR FOR SUCH SERVICES. CLOUDSITTER MAKES NO OTHER REPRESENTATIONS, PROMISES, WARRANTIES OR UNDERSTANDINGS OF ANY KIND RELATING TO THE SITE, SERVICES, INCLUDING THIRD PARTY SERVICES, OR CONTENT UNDER THIS AGREEMENT. CLOUDSITTER SHALL NOT BE LIABLE TO YOU, YOUR CUSTOMERS OR ANY THIRD PARTY FOR ANY CLAIM OR LIABILITY ARISING FROM OR RELATING TO YOUR USE OF THE INTELLECTUAL PROPERTY, THE SERVICES, INCLUDING THIRD PARTY SERVICES, THE SITE, OR FROM THE MANUFACTURE, USE, IMPORTATION OR SALE OF THE SERVICES, OR FOR ANY CLAIM FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND.
- You represent and warrant that You are a (i) party doing business, (ii) located in a jurisdiction, and (iii) engaged in activities, such that Cloudsitter is not required to obtain any export license, permit or other approval under applicable laws and regulations including but not limited to export control and/or sanctions regulations of any jurisdiction the laws of which may be implicated by the Terms. Furthermore, You acknowledge and agree that Cloudsitter has the exclusive authority to monitor such status on a regular basis and, if it should be determined by Cloudsitter that you, at any point in time, are in violation of any of these representations and warranties, Cloudsitter has the exclusive authority to immediately terminate any and all Service(s) to You (and any accounts You have with Cloudsitter) without prior written notice, and You will forfeit any remaining balance on Your account.
You agree to defend, indemnify and hold harmless Cloudsitter, its affiliates, and their respective directors, officers, shareholders, employees, agents, licensors and advisors (“Indemnified Parties”), from and against any claim, demand, liability, damage, losses, judgments, suit, action, or cause of action, costs and expenses (including, without limitation, reasonable legal fees) arising directly or indirectly out of Your use of the Services or the Site, including, but not limited to: (a) Your breach or violation of any provision of the Terms, including reasonable attorneys and associated advisor fees and costs; (b) Your use of any Service or the Site, including Your publication or use of Content that infringes the intellectual property rights of any third party, including, but not limited to, patent, copyright, and trade secret rights; (c) any action taken by Cloudsitter in investigating a suspected violation of the Terms or as result or finding that a violation has occurred; (d) Your activities and use of the Services that attract taxes and fees from government regulations including, without limitation, federal and/or state telecommunications regulations; and (e) costs associated with document production, depositions, interrogatories and related demands arising out of private third party, governmental or regulatory claims in connection with the Services or Site to the extent Cloudsitter is not a target. For purposes of this indemnity provision, if You are a Reseller, references to “your” includes You and Your customer(s).
- LIMITATION OF LIABILITY
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR INCOME, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY), RESULTING FROM: (i) THE DISRUPTION, USE OR THE INABILITY TO USE THE SERVICE(S), THE SITE OR ANY CONTENT FOR ANY REASON; (ii) ANY THIRD PARTY CLAIMS THAT THE USE BY YOU OF THE SITE, SERVICE OR THE CONTENT VIOLATES ANY INTELLECTUAL PROPERTY RIGHT; (iii) ANY ACTION TAKEN BY THE INDEMNIFIED PARTIES AS PART OF AN INVESTIGATION INTO A SUSPECTED VIOLATION OF THE TERMS OR AS A RESULT OF ITS CONCLUSION THAT YOU HAVE VIOLATED, OR (iv) ANY OTHER MATTERS RELATING TO THE SERVICE(S), THE SITE OR THE CONTENT.
- YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES SHALL HAVE NO LIABILITY TO YOU FOR ANY CONTENT DOWNLOADED FROM THE SERVICE(S). YOU AGREE THAT THE AGGREGATE LIABILITY OF THE INDEMNIFIED PARTIES TO YOU FOR ANY AND ALL CLAIMS UNDER CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING UNDER THESE TERMS OR FROM ANY OF CLOUDSITTER OR AFFILIATE POLICIES OR THE USE OF THE SITE, THE CONTENT, OR THE SERVICES IS LIMITED TO EUR $100.
- TERM AND TERMINATION
- TERM AND TERMINATION. This Agreement shall commence upon Your initial visit to the Site and will remain in force until your use of the Site and all of Your subscription to Services end. The initial term of any subscription for Services will be the term specified during the registration process for such Service with Cloudsitter through the Site. Unless expressly terminated as set forth herein, the subscription to any Service will automatically renew for additional terms at a period equal to the initial term for such Service. You may terminate the subscription to any Service by providing Cloudsitter notice of such termination at least thirty (30) days prior to the end of the then-current term for such Service.
- EFFECT OF TERMINATION OF SERVICE. Upon expiration or other termination of the Service(s) for any reason as permitted in this Agreement, You must stop using, and Cloudsitter will stop providing, the terminated Service(s). In the event of such termination, Cloudsitter will not refund any prepaid fees for such Service and You will be responsible for all subscription fees until the end of the subscribed to term. Cloudsitter may terminate this Agreement and any Service subscription at any time for any reason, or no reason, without providing any advance notice to You.
- SURVIVAL. Upon termination of Service(s) for any reason, You agree that You will immediately pay all amounts owed to Cloudsitter for Service(s). Any provision required by its construction or required for rights and obligations enforcement, shall survive termination, including, but not limited to, the indemnity provisions, limitations of liability and the survival terms and this Section 13 (Term and Termination).
- Data Privacy. Subject to Data Protection Laws, including the GDPR Regulations, Cloudsitter may provision the Cloudsitter Cloud Marketplace and/or provide the Services from any Cloudsitter or Cloudsitter partner facility anywhere in the world (including, without limitation the USA) and may, at any time, transfer the provision of the Cloudsitter Cloud Marketplace and/or provide the Services from one Cloudsitter or Cloudsitter partner facility to another.
- Privacy Statement. Cloudsitter’s collection, use, storage, processing, disclosure and deletion of Personal Data (as defined in the Privacy Statement) provided by Customer under this Agreement is governed by the privacy statement located at https://www.cloudsitter.com/privacy-policy/ or such other place as may be updated by Cloudsitter from time to time (“Privacy Statement”).
Your use of Third Party Vendor Services may also be subject to the privacy policies of the Third Party Vendor.
- GENERAL PROVISIONS
- ASSIGNMENT. You may not assign Your rights or obligations, whether by operation of law or otherwise without Cloudsitter's prior written consent, and any such act by You will be void.
- NOTICE. Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices of termination or regarding a claim. Notices to You will be sent to Your email address that Cloudsitter has on file. It is important that You address is up to date. Notices to Cloudsitter must be sent to:
|Email:||support (at) cloudsitter.com|
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- FORCE MAJEURE. Cloudsitter will not be liable or responsible to you, nor be deemed to have defaulted under or breached this Agreement, and will be excused from performance in the event of any failure or delay in fulfilling or performing any term of this Agreement or its performance of the Services, when and to the extent such failure or delay is caused by or results from acts beyond Cloudsitter's reasonable control, including without limitation: domain name server or instant messaging issues, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), trespassing, sabotage, theft or other criminal acts, by requirement of law, regulation, order or other governmental action, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions.
- NO WAIVER AND AMENDMENT. Cloudsitter will not be considered to have waived any of its rights or remedies described in the Terms unless such waiver is in writing and signed by an authorized representative of Cloudsitter. No delay or omission by Cloudsitter in exercising Cloudsitter rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy by Cloudsitter will not preclude further exercise of any other right or remedy. Cloudsitter failure to enforce the strict performance of any provision of the terms and conditions in the Terms will not constitute a waiver of Cloudsitter right to subsequently enforce such terms and conditions.
- RELATIONSHIP OF THE PARTIES. You and Cloudsitter are independent contractors to each other. Nothing in the Agreement will be interpreted to create a partnership, joint venture, agency, fiduciary or trustee relationship. You will not have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of Cloudsitter. Cloudsitter may at any time subcontract any or all of Cloudsitter obligations hereunder to any third party.
- GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION. If you live (or if a business, headquartered) in the United States, Canada or Mexico, this Agreement will be governed by, subject to, and interpreted in accordance with the laws of the State of Delaware, without regard to conflict of laws principles. You hereby irrevocably consent to the nonexclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Delaware, for the purposes of adjudicating any action or proceeding to enforce the Agreement. If you live (or if a business, headquartered) in any other country, this Agreement will be governed by, subject to, and interpreted in accordance with the laws of Germany, without regard to conflict of laws principles. You hereby irrevocably consent to the nonexclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Berlin, for the purposes of adjudicating any action or proceeding to enforce the Agreement. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply. No cause of action arising under or relating to this Agreement may be brought by You more than one (1) year after it first occurs.
- CONSTRUCTION. The Services shall be provided in the English language unless agreed otherwise. The parties confirm that they have requested that the Terms and all related documents be drafted in English at the express wishes of the parties. Section headings are for convenience only and are not to be used in interpreting the Terms.
- ENTIRETY. This Agreement, together with any referenced terms, conditions and policies, are the final and entire agreement between You and Cloudsitter and supersede all prior or contemporaneous oral or written agreements, representations, understandings, undertakings and negotiations. In the event of any conflict between this Agreement and any referenced and/or attached documents these terms and conditions shall govern unless such referenced and/or attached document is signed or electronically agreed to by both authorized representatives of each party and manifests a clear intent to override this Agreement.